Introduction
In April 2012, the European Club Association (“ECA”), Union of European Football Associations (“UEFA”) in an observer role, European Professional Football Leagues (“EPFL”) and Federation Internationale de Footballeurs Professionels Division Europe (“FIFPro”) signed the Autonomous Agreement regarding the Minimum Requirements for Standard Player Contracts in the Professional Football Sector (“Agreement”). The Agreement paves the way for greater respect of contracts, especially in the context of employment relationships, and better recognition of the basic rights and obligations of European clubs and players. The focus of implementation of this Agreement is on Eastern European countries, given that in many Western European countries, the standard player contract used already contains or in certain cases foresees specified provisions more than the minimum requirements contained in the Agreement.
Background
Football, ‘the beautiful game’, is not only the world’s most popular sport, but also the base for a multipronged sports industry worth billions of dollars. This necessitates the requirement for a compact legal framework that is sensitive to the needs of the sport and is able to safeguard the rights and obligations of the stakeholders involved, especially the clubs and the players.
Contractual stability and related issues originating from professional contracts in football have contributed significantly to jurisprudence in the sphere of sports law. A few such cases are discussed here to provide background on the need for the Agreement. Until the mid 90s, clubs held the upper hand in contract negotiations with players, and, in certain parts of Europe, were able to prevent players from joining another club even if their contracts had expired. In Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93, the European Court of Justice banned restrictions of foreign EU members within the national leagues and allowed professional football players in the EU to move freely to another club at the end of their term of contract with their present team. The case had a profound effect on the transfers of football players within the EU. All EU football players were given the right to a free transfer at the end of their contracts, provided that they were transferring from a club within one EU Football Association to a club within another EU Football Association only.
FIFA was forced to modify its Regulations on the Status and Transfer of Players to ensure balance between the principle of contractual stability and the legal implications of the recognition of the freedom of movement for players through the introduction of Article 13 (discouraging unilateral termination of contracts by clubs and players for a protected period of 3 seasons/years for any contract entered into by a player aged less than 28 and 2 seasons/years for any contract entered into by a player aged over 28), Article 14 (enabling players to unilaterally terminate long term contracts for ‘sporting just cause’), and, controversially, Article 17 (the possibility of unilateral termination of contracts without just cause).
The application of Article 17 was the crux of the Webster ruling, a series of disputes consisting Wigan Athletic FC v Heart of Midlothian (CAS 2007/A/1298), Heart of Midlothian v Andrew Webster and Wigan Athletic FC (CAS 2007/A/1299) and Andrew Webster v Heart of Midlothian (CAS 2007/A/1300). In September 2006, Webster became the first player to exploit Article 17 to unilaterally terminate his contract with Heart of Midlothian and trigger a transfer to Wigan Athletic. The Court of Arbitration for Sport held that Hearts would be entitled to only £150,000 in compensation calculated against the residual value of the player’s contract.
In 2007, UEFA, FIFPro and EPFL developed the European Professional Football Player Contract Minimum Requirements (“MRSPC”) and agreed to transform the MRSPC into a European autonomous agreement. They further agreed to commit elaborate provisions regulating the employment relationship in the professional football sector, taking into account its specific nature, in future agreements. The Agreement is the culmination of these efforts.
Particulars of the Autonomous Agreement
In brief, the Agreement lists contractual clauses that are to be included in every professional football player contract (“Contract”) across Europe, subject to applicable local laws. The Agreement aims at creating a standardised employment contract throughout the European Union/UEFA Member Associations and includes provisions, such as:
- the form of the Contract;
- the obligations of the club and the player;
- the inclusion of clauses relating to image rights, loan arrangements, anti-doping, player discipline and grievance, anti-doping, anti-racism and discrimination, etc; and
- the inclusion of a disciplinary procedure and boilerplate clauses.
The noteworthy aspects of some of the clauses are discussed here in greater detail.
1. Relationship – The Contract creates an employment relationship between the club and the player, subject to the national legislation for such relationships as applicable in the country wherein the club is registered. Further, the Contract would be governed by the law chosen by the club and the player. Such choice cannot, however, deprive the player of the protection afforded to him by provisions that cannot be derogated from by agreement under the law of the country where the club is established.
2. Club Obligations - While the club is obliged to pay the player a salary and other financial benefits, the club is also responsible for medical and health insurance for accident and illness, payment of salary during incapacity and pension fund/social security costs. More importantly, the Contract also regulates the financial impact in case of major changes to the revenue of the club, such as promotion to a higher league in which case the player could be entitled to a higher salary and/or a performance bonus, or relegation in which case the player could either choose to leave the club or undertake a salary cut. Two of the most important obligations of any Club under the Contract give effect to the EU Council Directives:
a. Council Directive 94/33/EC on the protection of young people at work. The Contact should ensure that every ‘youth player’ i.e., a minor involved in any club’s youth development programme has the possibility to follow mandatory school education in accordance with national law and that no youth player is prevented from continuing non-football education.
b. Council Directive 89/391/EEC on protecting the health and safety of workers. The Contract should contain particular provisions on risk assessment, preventive measures, as well as information, consultation, participation and training of players on injury prevention and eliminating risk factors for occupational risks and diseases.
3. Player Obligations - Players are obliged to fulfil certain responsibilities which would be expected of any professional athlete such as playing to the best of the player’s ability, obeying club rules, behaving in a sporting manner, undergoing all adequate medical tests, etc. In addition, players are expected to refrain from indulging any gambling or related activities in football and not bring the club or the game into disrepute. Players have the right of a second opinion by an independent medical specialist if the player contests the opinion of the Club’s medical specialist on the player’s fitness. If there are still differing opinions, the player and the club have to agree on accepting an independent third party medical opinion, which will be binding. Professional football is rife with instances of stand-offs between clubs and countries on the status and availability of players for international duty. Clubs often force players to miss non-competitive international friendly games on grounds of ‘fitness’, and this clause may ensure that players have a say in matters relating to their fitness.
4. Image Rights - Image Rights relate to a player’s marketable identity or traits that uniquely identify the player and that therefore can be commercially exploited by the player or licensed to third parties. The Agreement provides for Contracts to detail the manner in which the club and the player will exploit the player’s image rights. In addition, as a matter of principle, the Agreement permits the individual player to exploit his rights by himself and the club he belongs to may use the player’s image rights as part of the whole squad.
This issue of image rights has gained importance in the recent past as the transfers or retention of iconic players by clubs often hinge in the related commercials. The dispute between player and club on image rights is often a question of wrangling over the remuneration payable towards these rights. Players usually grant their clubs the limited right and license to use image rights in joint commercial agreements with the club. The income from image rights supplements the income that a player receives from his professional contract. A separate agreement entered into between the club and an image rights company owned by the player allows the club to exploit the player's image and commercial value.
5. Loan Agreement – The Agreement provides that the player and the club need to agree on any ‘loan’ arrangement for the player to another club. Typically, a ‘loan’ involves a particular player being allowed to temporarily play for a club other than the player’s parent club for a certain period of time. Players may be loaned out to other clubs for one of several reasons. Most commonly, for young players to gain valuable first team experience through the parent club’s ‘feeder’ clubs such as in the case of Manchester United and Royal Antwerp respectively. In this instance, the parent club may continue to pay the player's wages in full. Further, a club may opt to take a player on loan if it is short on transfer funds but can still pay wages, or as temporary cover for injuries or suspensions. The parent club might demand a fee and/or that the loaning club pays some or all of the player's wages during the loan period. A club might seek to loan out a squad player to make a saving on his wages, or a first team player to regain match fitness following an injury.
A loan may be made to get around a transfer window. Such a loan might include an agreed fee for a permanent transfer when the next transfer window opens. Some players are loaned because they are unhappy or in dispute with their current club and no other club wishes to buy them permanently. In the Premier League, players on loan are not permitted to play against the team which holds their registration.
6. Player Discipline and Grievance – Clubs are required to establish appropriate internal disciplinary rules with sanctions/penalties and necessary procedures which the player is bound to obey. However, clubs are entrusted with the task of explaining these rules and procedures to the player. The player has a right to appeal and sanction/penalty imposed and the right to be accompanied/represented by the club captain or a union representative during such appeal.
7. More Favourable Provisions – Last, but not least, EPFL, ECA, FIFPro, the club and the player have the right to agree provisions deviating from the Agreement for the benefit of the players.
Conclusion
The advantage of the Agreement is that it clearly defines the rights and obligations of the club and the players, thereby establishing a system of good governance for professional football. The requirements in the Agreement are expected to be enforced in the territories of all UEFA member associations within a period of three years from the signing of the Agreement. At the same time, the Agreement serves the purpose of only specifying the content of player agreements while providing sufficient independence to the players and clubs to arrive at the most suitable template for the agreement. While there have been no similar attempts in India when it comes to football, the BCCI has provided standard form player contracts for all players contracted to the various IPL franchises. Globally, it is often standard practice for national associations to prescribe the format of professional agreements between players and clubs.
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